July 8, 2012

Concedes Dahlia Lithwick, pondering why liberals (supposedly) don't excoriate the Justices who disappoint them. She notes that "there is a long tradition of liberal counter-argument to the laissez-fair [sic] constitutional vision put forth by the court’s five conservatives," but "'liberals have largely forgotten how to think, talk and fight along these lines.'"

There are 2 — at least 2 — obvious responses.

1. Liberal Justices don't disappoint. The liberal Presidents have gotten what they sought, and they haven't had the equivalent of Blackmun, Stevens, O'Connor, Kennedy, Souter, and now, perhaps, Roberts to complain about. When you're getting what you want, you keep your mouth shut.

2. Those liberal constitutional theories that get a lot of play in the legal academy don't sound right when spoken out loud in the context of public discourse aimed at ordinary people. Go ahead, put those liberal theories into clear, comprehensible words and lay them out there for the general public to compare to what conservatives say about the Constitution. The conservative theory, put clearly, is compelling to ordinary people. And Lithwick is most certainly not putting the conservative theory clearly by referring to it as "the laissez-fair constitutional vision."

It's laissez-faire, not laissez-fair, but quite aside from that, what is Lithwick trying to say? Conservatives talk about following the text and being faithful to the historical meaning of the text. Laissez-faire refers to leaving things alone. Lithwick makes it sound as though the "liberal counter-argument" is to interfere with the Constitution — to rewrite it. (I assume she thought she was saying that conservatives like laissez-faire economics, but that's not in itself a "constitutional vision.")

Lithwick complains that liberals don't know how to "think, talk and fight," but she has a problem with the way she thinks, talks, and fights as she's trying to register her complaint. Why is that?

There are 2 — at least 2 — obvious answers.

1. Lithwick is really only talking to liberals. It's a closed circle, where you never have to figure out how to speak comprehensibly and clearly, because you are all so self-assured and complacent about the goodness of your beliefs. It's babble, not intended for outsiders.

It really can't be made clear. The left is coming from a tradition of emotionalism; the legal version of handsome young people at the barricades, fists in the air, shouting inspiring slogans. To think and articulate and convince is beyond the point.

The everyday liberal just thinks "oh that's nice" when a nice liberal opinion comes down, and so they unwittingly support the extremists.

Lithwick makes it sound as though the "liberal counter-argument" is to interfere with the Constitution — to rewrite it.

But I think that this is the so-called liberal counter-argument to conservative/libertarian Constitutional thought.

And I believe that your second obvious answer is the best one: so-called liberal Constitutional "thought", such as it is, can't be made clear because it's not based on logic. What passes for liberalism these days seems to be a mixture of outcome-based, quasi-legislative decision making, solely justified by political emotionalism. Lithwick quickly hits a wall because there is no way to logically justify emotionalism. This is why so-called liberals are solely interested in gaining and using the power of the State to enact their emotion-based schemes. No logic or explanation is necessary when you control the powers of the State to confiscate property and to revoke personal liberty through the threat of violence.

She could've stopped with "liberals have largely forgotten how to think," because talking and fighting seem to be their defaults. Actual thought - critical thinking - can get you in trouble. It's an invitation for it.

For the many years that I was a liberal Democrat (from about 12-25 years old), there was a nagging voice of reason, somewhere in the back of my head, telling me that something wasn't right with my politics.

Your post here, and many other places, is that voice crisply expressed.

is really only talking to liberals. It's a closed circle, where you never have to figure out how to speak comprehensibly and clearly, because you are all so self-assured and complacent about the goodness of your beliefs. It's babble, not intended for outsiders.

That is, I beleive, the absolute hands down best description of liberal thought I have ever seen.

@Paul Zrimsek: Agreed. I think her entire premise falls apart on the notion of a laissez-faire constitutional approach. Ann attempts to apply a definition here on her behalf, but I think she's being overly generous to Lithwick and her muddy thinking.

Conservatives talk about following the text and being faithful to the historical meaning of the text.

You can't sum up the liberal approach in a similarly attractive way, because their approach is:

The Constitution is a "living document" and we can interpret it to mean anything we want thereby de facto amending the Constitution without going through the prescribed constitutional process. In other words, we're going to cheat to get the result we want.

If you state this clearly, you can't do it in a way that sounds good to the public.

Those liberal constitutional theories that get a lot of play in the legal academy don't sound right when spoken out loud in the context of public discourse aimed at ordinary people.

I'm not a lawyer, but I studied Government and I read every day about law, politics, and intertwining issues, and I've never seen any such thing. Really never seen it. I want someone, liberal, conservative, or purple polka-dotted, to explain the liberal theory of Constitutional interpretation. Is there any there there?

conservative constitutional thought is so much more crisply expressed . . . there is a long tradition of liberal counter-argument to the laissez-fair constitutional vision

It is not that conservative thought is so much more crisp, but that liberal "thought" is not crisp at all. It is, in fact, liberal thought that is "laissez-fair," which takes a hands-off approach to reason and logic, preferring instead the approach of arbitrary based imposed outcomes.

An argument need not be crisp or rational, it need only be promoted by a sufficient number of people. Liberal thought is concerned with POWER, not reason. So what if arguments uncrisply sway back-and-forth and contradict each other? Persuasion isn't the objective, seizing power and imposing their will is the objective.

One thing that drives me nuts about lefty discourse is how they put forward very questionable-to-downright-demonstrably-false assertions as broadly-accepted fact.

From the article:For one thing, the court’s left wing has always been more fractured than the right, and the sense that the four liberals should be acting in perfect lockstep has never really gained any force on the left.

Whaaa?!? See, case in point right there. If they were any more in lockstep we'd have a new Olympic sport: synchronized adjudication.

Another laughable quote:One wants to be careful what one wishes for here: The day candidate Obama tells the mainstream media that he would never confirm a justice to the Supreme Court that disagrees with him about anything, ever, I’d start to feel very, very nervous about the meaning of an independent judiciary.

Phew. I feel better knowing lefties think there ARE limits as to how much a Democrat President should pwn the judiciary branch. What she means is that Obama shouldn't say such aloud to the press; he should merely imply it through various passive-aggressive threats.

Disagree with #2. It can, and sometimes is, made clear, and whenever it is the public rejects it so quickly that they now dare not speak it.

...because you are all so self-assured and complacent about the goodness of your beliefs....

BINGO!

Regarding the left in America today: we're seeing a religion that is stuffed to the gills with self-righteousness and with a well practiced attack on or dismissive rejection of the unorthodox or heretic or evil others.

The constitution is usefull in some respects and completely useless in others. A consistent left wouldnt try to hide behind it, but embrace what it means to be a small-d democrat and embrace the costitution where it is enabling this kind of politics. That we on the left are not paying much attention or devote much thought to the rest of this museum piece is actually a sign of hope for us.

I would also like to explain why I always refer to "progressives" and contemporary "liberals" as "so-called liberals". The reason is that philosophical liberalism actually has a definition, and I believe that it was one of the main intellectual forces behind the creation of the United States of America.

The reason that modern "liberals" cannot really satisfactorily explain the intellectual foundation of their thoughts and policies is that there isn't one, and any claim to being grounded in actual liberal philosophical tradition is false. The heirs to liberalism's true intellectual legacy are small-L libertarians, principled small-government conservatives and, to a certain degree the "Tea Party" types.

I think the first issue is her use of the word "liberal" as synonymous with "left"

The Left as subsumed "liberal" and it is a movement whose underlying ideology is decidedly Eurocentric, not American.

The elites of the Left may be able to express themselves, but they cannot without exposing just how much their principles are anathema to American principles. The rank-and-file Leftists are reactionary emos. Any disagreement with them and one is a SIXHIRB -- sexist, intolerant, xenophobic, homophobic, Islamophobic, racist, bigoted MEANY!

That we on the left are not paying much attention or devote much thought to the rest of this museum piece is actually a sign of hope for us.

That you consider our Constitution, our only bulwark against tyranny, a "museum piece", is evidence how intellectually adrift and how dangerous you are, and why you need to be removed from any positions of power as quickly as possible.

La Pasionaria, the "museum piece" to which you refer encapsulates a reform mechanism called "amendments".

Does the Left, even in the supposedly sophisticated legal academy, really regard the Constitution as an anachronism to which attention should not be paid? That would be an easy way to explain the lack of leftist constitutional theory.

"A consistent left wouldnt try to hide behind it, but embrace what it means to be a small-d democrat and embrace the costitution where it is enabling this kind of politics"

-- If you actually believed that, you would be fine with gay marriage remaining illegal and with the possibility that in a few years, the same would happen with abortion. But, you don't really care about democracy. It's all just puffy words to make it sound like you have high-falutin' ideas when, in reality, it is standard politics. But, go ahead, tell us how much you want the people to control politics via democracy while the left wants them to be unable to engage in political speech that the Constitution grants them.

I think at least one "liberal" argument is very clear: the federal government can make laws about anything that affects interstate commerce, and since that it everything, it can make laws about everything. Subject to specific constraints, e.g. the First Amendment.

Not only is that clear, but I think the vast majority of Americans agree with it. They haven't thought about it much but their impression is that, of course!, "the government" can make laws about anything.

It's not intellectual laziness; liberal con law is absurd out of necessity.

It's political laziness that's on display here. Liberals have put all their efforts into the academic parlor game of making logic pretzels instead of the hard work of getting constitutional amendments passed.

Maybe it has something to do with the embarrassing failure of the Equal Rights Amendment. They sense correctly that the American people fundamentally disagree with the liberal agenda.

Lithwick asserts the leftist justices deviate from their presumed political preferences more than the other justices, although there were no stats to support it. The lack of data suggests to me this isn't a serious anlysis, it's just an attempt to give leftists their talking points so they can dismiss the public criticism without engagement.

The obvious response to me is the differing legal environment facing the left and right. The legal environment has been moving left for decades, perhaps even centuries. So the opportunities to deviate from their presumed poltical preferences are far greater on the left than the right since the preferences of the right conform to existing law more often. So unless the justices have completely abandoned anything other than a naked political agenda I expect the leftist side to deviaqte more often. I don't believe any of the justices are entirely political. I think some justices more than others define law in a way that allows them to incorporate politics in particularly meaningful decisions.

I also suspect many of the cases where the leftist justices disagree are hairsplitting, decisions to move the law only 2.875 steps left rather than the full three.

"Im sure there are a lot of fancy definitions out there, but the main thing for me is to minimize income inequality and improve the living standard of workers through regulations and redistribution."

It such a shame such efforts only take from some workers in order to give to others, and in the bargain condemn future workers to a lower standard of living. But oh well, those people's lower standard of living will only make the economic justice argument more appealing. It doesn't really matter if people are worse off as long as we can convince them to hate the right people and elect leftists.

I look at the Constitution as a contractual agreement. Duly authorized representatives of the 13 original colonies got together and negotiated the basic terms by which they would cede some of their sovereignty to form a central government. The Constitution's ratification can be thought of as acceptance of the final executed agreement. Everybody expected to honor the final terms. As new states entered the union and became parties to the contract, they agreed to accept the terms negotiated by those who ratified it before them.

Just as contracts can be amended or renegotiated, so too can the Constitution. Formal mechanisms are in place for the states, if they so choose, to amend the constitution to give even more sovereignty away, or to re-take power and sovereignty previously granted to the federal government.

That was the deal everyone signed onto. Precise language and strict terms were used to define the specific enumerated powers of the federal government. The average Joe can understand the Constitution when explained that way.

But that contract has not been enforced for 100 years. How many other contracts do parties (in this case Congress) ignore the terms and judges allow the non-enforcement? Or worse, the judge re-interprets the terms to conform to his worldview?

The problem with the liberal interpretation of the Constitution is that by inventing the "living document" concept, they effectively threw out the Constitution. They did so solely to get around the burdensome, time-consuming, and unpredictable amendment process so that more power could be concentrated in the benevolent federal government to facilitate national social change.

But I think the average Joe's problem with the liberal interpretation is that he sees it as simply as I do. Liberals don't take the terms of the contract seriously, and are willing to invent rights that do not exist and re-interpret terms based on the whims and ideology of the judge. The average Joe understands that when he signs a contract, both he and the other party believe they have reached a meeting of the minds and both parties expect the other to perform. Otherwise neither would accept the deal.

I always thought it was "lazy-fair", which made perfect sense to me. Now you tell me it's some Frenchie swill that still means lazy government is more fair. OK, but I don't see the need to get all uppity with speaking French. Talk American: it's "lazy-fair".

There is the mechanism by which the Constitution can be amended, but that requires straight-forward discussion and ratification by the required 3/4ths of the states. Roe v Wade, for example, would never have made it that way at the time or since. As a consequence, the amendment process bends towards conservatism. Progressives are left in the camp of torturing language and common sense in the efforts at their view of progress. It has become so extreme that I suspect we will not see an end to it without clarifying violence. The clarity is desirable, the violence not so much.

It's not that the liberal position can't be made clear. Sure it can: this is the way we want it, and we will have it, by any means necessary, Constitution be damned. It's just that they can't say it that way except amongst themselves.nalthough that is changing as well. Maybe another four years of Obama, and they will no longer have to pretend thy care about the Constitution, the laws or the voters.

Victor, I think you're right, but the Professor keeps hinting at stuff we outside the law schools have not been able to hear. Let's hear them!

Conservative Constitutional interpretation has a consistent premise: trust the text, study the intent, and amend when necessary. Liberal Constitutional interpretation has no counterpoint other than yours: we want what we want, Constitution be damned. But there are liberals teaching ConLaw. Shouldn't we demand an argument, a theory, a something?

Anarchists would/should say that the Constitution itself is proven invalid by its vary existence. Do we lend that credence in public discussion?

Fascists would/should say that the government should and must do whatever is necessary to do...whatever is necessary. Do we believe in that?

I'm begging for a liberal attempt at Constitutional theory. Give me a hook to hang my coat on, or a target to shoot at, or something. Don't surrender to being considered such a bunch of squishy idiots, or we'll just assume that you might be stupid.

"That's good, especially since you got so persnickety about how to spell a stupid french word that got stuck into our language."

How was I persnickety? Seems like I was pretty mellow about it. I said "It's laissez-faire, not laissez-fair, but quite aside from that, what is Lithwick trying to say?" I mentioned it, then moved on to the substance. If I wanted to make a big deal out of the error, I would have said something else.

And this fact, it seems to me, is one of the reasons that leftists embrace their particular approach to the constitution: the exclusivity of it.

You like Dunkin Donuts coffee? Leftists will call you a bumpkin and insist that true coffee lovers drink only fair-trade single-source organic blah blah blah. You like Led Zeppelin, they'll sneer and tell you about some indie band no one has ever heard of.

For all of their talk about the common man and his plight, a leftist's life seems to be dedicated to demonstrating that he is anything but common.

I believe that liberals are boxed in by Roe v. Wade. They are forced to nominate and select judges who disparage our Constitution's text and history. They cannot put Hugo Black on the Court again. They have to avoid Akhil Amar or John Hart Ely or James Boyd White. Any liberal textualist who is serious about Constitutional text and history is liable to despise Roe v. Wade for its utter lawlessness. Thus liberalism rewards sloppy thinking and vague, result-oriented argument. Anthony Kennedy is very comfortable with that approach because he's a sloppy thinker who prefers vague laws and finding the "right" result.

The right is dominated by textualists because we are determined to overturn Roe v. Wade. This is very similar to the Lochner era, when liberals like Hugo Black focused on the Constitution's text and history because of his hostility to the lawlessness of a right-wing Court dictating a political agenda.

Power makes you sloppy and corrupt. And it makes your attackers smarter and sharper as they zero in on your weaknesses. Litwick notes this disparity, and yet her legal analysis is so flaccid and pathetic, all she can do is throw Lochner spitballs at Scalia and company. It's an absurd criticism.

The Hugo Blacks of the legal world are all on the right now, fighting the corrupt lawless dictators with truth (and truth is made up of words, the meanings of which cannot be denied). The liars who defend Roe--and all of modern liberal jurisprudence is based on defending Roe--are forced to dissemble and hide. Process is substance. We can't define "person". A baby is a fetus unless you want her to be a baby. We don't know when people die. It's not abortion, it's "choice". There is no father. There is no baby. Ultrasound is rape. The Hippocratic Oath can be ignored. And all of this is mandated by the Constitution.

Of course there's strong feeling and passion on the left, but honesty? Textual integrity? A respect for history and democratic process? There's none of that. There can't be, not when you're defending Roe v. Wade.

So liberals are forced to use euphemism instead of argument, lies instead of truth. And when lies are under constant attack, lies will not stand. In fact thinking itself does great damage to the whole legal framework of abortion. So Roe rewards non-thinking, the ignorant and the blind, the facile and the bumper sticker mind.

Is there any set of liberals who make any pretense to care about the writing style of their heroes?

Craftsmanship may seem like a small virtue in the arena of big ideas. It underpins clarity; that's nice. But craftsmanship is not just a sales pitch, as Lithwick seems to think. Craftsmanship reflects a way of thought. You could even say it changes the way thought happens.

Craftsmanship demands reverence for the tangible. Writing is tangible -- here the words float before you on the screen; there they stain the paper in your hand. Caring about writing is different than caring about thoughts. It is more specific and demands greater precision.

When you begin to care about the tangible, the outcome of your thinking changes. What is the specific fact? What is the precise meaning? What will be the tangible result?

"I want someone, liberal, conservative, or purple polka-dotted, to explain the liberal theory of Constitutional interpretation. Is there any there there?"

"The US Constitution is a 'Living Document'": Translation: "The US Constitution means whatever five left-wing Justices think they can get away with saying that it means. Decisions by five non-left wing justices have no value (see Citizens United, or Bush v. Gore)."

Here's an interesting experiment: ask a left-wing law professor what would be "too far". IOW, what would be a left-wing favored ruling by the Supreme Court that would clearly violate the Constitution. I'm curious what answer you would get, or if you'd just get steam rising out of the law-prof's ears.

The fact is that conservative constitutional thought is so much more crisply expressed, and so much more broadly accepted, than liberal thought—an argument expressed forcefully today in the New York Times by Professor William E. Forbath of the University of Texas.

Forbath is indicative of the problem. He's not a liberal at all, but rather a socialist with a powrful urge to impose his will on our country.

Forbath asserts that Scalia, Thomas, Alito and Roberts want to "revive the old laissez-faire Constitution." This is so sloppy, so dishonest, that one can only suspect that Forbath engages in this bit of slander in order to justify his own will to power.

Laissez-faire government, unchecked corporate power and the deprivations and inequalities they bred weren’t just bad public policy — they were constitutional infirmities.

This is a call for dictatorship. The Constitution is largely silent as to how much capitalism we will have, or how much socialism we will have. The Constitution says nothing about regulating corporations, for instance. Yet Forbath and people like him are quite willing to violate our laws and impose their vision of utopia on our people.

In Forbath's version of our Constitution, Republicans cannot win a vote and any vote they win will have no meaning. There can be no libertarian government, it's illegal. That is the upshot of Forbath's thinking. And he wonders why his unelected dictatorship is unpopular with our people.

If the left is worried about popular acceptance, it should not so quickly abandon constitutional concepts like popular sovereignty, free speech, or equal protection for all. It needs to have a basic respect for democracy and the importance of voting.

Of course people are suspicious of leftists who want to impose Marxist theory on us in the name of the Constitution. Indeed, I believe any would-be dictators will always be doomed to unpopularity and scorn, regardless of whether they are on the right or left.

Ann, you cared enough about the misspelling to devote a whole clause to pointing it out. That's already a "big deal", in that it shows how much value you ascribe to "correct spelling." Unless one expects etymology can convey meaning, it simply doesn't matter in that it made the babble no more or less understandable. That's what spell checkers are for (and I note, blogger's spell checker flags laissez-faire as incorrectly spelled).

I don't think the so called liberals for the most part think, "This is what we want, the Constitution be damned." Their "logic" is slightly more sophisticated, though still flawed. I think it goes something like this:

The Constitution is a wonderful document which exists to promote a fair society. We are for laws which make society more fair. Therefore, the Constitution cannot ban these things we are for.

It is strikingly similar to how the Catholic church deals with possible conflicts between the Bible and science. The Bible is without error and science is capable of informing us of how nature works. There can be no actual conflict: We can only see a conflict between the two when we either misinterpret scripture or misinterpret scientific data.

Economic justice = Knowing from the time you are a child that you will never achieve much more than a mediocre existence, the highlight of which will be a vacation. You will always know that you will never achieve enough to lift your fellow man beyond his current state, or save others from harm or tyranny. You will never be able to afford to give charity to the unfortunate, and your sacrificing of upward mobility will not prevent others from poverty who you will be powerless to help. You will settle for life as a cog in the state wheel. Everything you are or can be will be defined by the state, by people who will always have much more than you ever will. Quite inspiring really.

There is not a minimum of income inequality in any European nation or any other nation for that matter, because it's a silly idea - the economic equivalent of a perpetual motion machine.

They give you a liberal decoder ring in college. It is much easier with people on the right since they say what they mean and try to make sense. You can count on words having a widely accepted meaning grounded in objective reality. The left does not have a coherent philosophy because they do not have a coherent vocabulary... or maybe I have it backwards as to cause and effect.

Here is the problem in a nutshell. Academics get paid a lot of money because they supposedly know things that the average person does not. But people are actually pretty bright and what has worked throughout history is the same as what works now when it comes to governing and organizing our lives and our societies. There are no breakthroughs to be had in those areas.

The common man knows this. But to justify their salaries professors in the Useless Arts have to hold an opinion other than what the common man does or what is the point really? Their con would be exposed. This claim to greater knowledge is common in a lot of scams from homeopathy, to speaking with the dead, to racial studies.

Since the more rational viewpoints are already held by the guy in the street it is logical that what is left for the academics consists mainly of irrationality, sophistry and postmodernism of various stripes.

This is why saying someone is an academic is a form of insult. Everyone understand all of this on a gut level even if they cannot put it into words.

In the end, every political system that isn't based on "museum pieces" being treated as a valid basis for law ends up being a tyranny. Because other than the impulses shaping those holding power, what actually determines, by law, what "justice" and "equality" mean?

La Pasionaria and others imagine themselves as Just Rulers (or to be more fair, imagine that others like themselves), but in the end LP and her useful idiot friends are always second against the wall.

dbp, I think you have the tiger by the tail there. Lawyerism is a religion.

Law-school graduates generally seem to think of themselves as better thinkers than most. Partly it's a cultural thing. Professor Kingsfield said, "You come in here with a skull full of mush and you leave thinking like a lawyer."

An astonishing proportion of the Fox News Channel folks is law-school-trained. I know several law-school graduates who have moved on to other missions.

People who seek out law-school education (1) tend to think they're smarter than other people and (2) tend to think that the law degree proves that.

As you note, dbp, it has the hallmarks of religion. Go to the school; bow before the greats; get the J.D.; rise above the common people. You will see farther than the people beneath you.

Im sure there are a lot of fancy definitions out there, but the main thing for me is to minimize income inequality and improve the living standard of workers through regulations and redistribution.

Of what?

An herein lies a perfect example of what our hostess is talking about.

There is something wrong.

Something must be done

(magical thinking)

Voila!

There is no concern or desire to understand the mechanisms that drive an economic decision. In fact such knowledge is considered unhelpful to a solution. We then have people endlessly parroting a meme without even knowing what THAT meme means.Their understanding of 'science' and 'scientific' are more in line with Stalin than with Newton.

Liberals care about who wins the case, not whether the ruling or resulting law are coherent. They'd twist themselves into pretzels to get Citizens United overturned, as they would do had Sebelius gone the wrong way, precedent be damned.

A constitutional republic whose federal government is one of limited, enumerated powers simply can't provide the vehicle the left needs to pursue Utopia, i.e. a totalitarian, authoritarian state. The very notion that the state's do-gooding can be limited is anathema to them. That's the turd on the table they don't want to acknowledge.